Are Uber drivers workers? What about Pimlico Plumbers? Or lap dancers at Stringfellows in London? The status of each of the above has been considered by the Employment Tribunal.And what about the "self-employed" individuals who work in your business?

​In the UK, a distinction is drawn between (1) employees, (2) workers, and (3) self-employed. Employees have extensive rights whereas workers benefit from basic protections. But these basic protections could result in significant unforeseen costs for a business. They include: a right to be paid the national minimum wage; a right to be paid annual leave; a right to rest breaks; the benefit of the maximum working week; a right to pension contributions under the auto-enrolment scheme; and the right not to be discriminated against or suffer detriment. A discovery that your "self-employed" people have a right to paid annual leave, for example, could be costly, as could a claim that the business has not been paying the minimum wage And it might be worse! The individuals may, as a matter of law, be found to be employees. If so, they will benefit from the full range of employment rights. It may be an unpleasant shock for a business to terminate a contract with an 'independent contractor' and then be faced with a claim for unfair dismissal.The test: all the relevant factorsMany businesses use individuals whom they regard as self-employed. Some businesses refer to these individuals as "contractors" or "independent contractors". Some of these individuals may work through their own personal service companies. Contracts may expressly refer to them as being "self-employed". However, none of the above is necessarily conclusive in determining the true status of the individuals. They might be employees or workers. Businesses should be aware of the potentially serious consequences of getting it wrong.The label the parties put on the relationship may not be conclusive. Simply calling a person "self-employed" does not mean that he or she is not an employee or a worker. A tribunal will look at a wide range of factors to determine the substance and the reality of the relationship. Among these factors, significant questions include: (1) whether the individual has to provide his own work or skill or can provide a substitute; (2) do both parties owe mutual obligations; and (3) what level of control is exercised by the business?The whole relationship, starting with the terms of the contract, should be considered. It is not a case of simply applying a checklist though HMRC adopts such an approach when determining an individual's status for income tax, social security and VAT. However, the determination for HMRC purposes that an individual is self-employed for tax matters does not necessarily mean that the individual would be assessed as self-employed for the purposes of employment rights.The potential cost to UberTwo Uber drivers, James Farrar and Yaseen Aslam have taken the company to the Employment Tribunal supported by their union, GMB. They claim that they are not, in reality, self-employed but are workers'. As such, they are entitled to receive holiday pay and the minimum wage. Uber, with over 30,000 drivers in London and more elsewhere in the UK, argues that drivers choose to work for the company so they can become their own bosses, pick their own hours and work flexibly. In addition, Uber claims that it is just a technology company and not a taxi organisation and that the drivers were clearly self-employed.We are still awaiting judgment on this case. But if Uber were to lose the argument, it would have to rethink its entire business model in the UK and build in costs for holiday pay and pension contributions. These costs will probably have to be passed on to the customers.A finding in favour of Uber is likely to be widely publicised and may lead to other "self-employed" individuals questioning their status. Indeed, another case concerning cycle couriers working for Addison Lee, eCourier, City Sprint and Excel, is expected in November.What can businesses do?Businesses should review their arrangements with the "self-employed" individuals who carry out services for them. They should ensure that their contracts contain a range of clauses that would assist in the argument that the individuals are indeed self-employed. But this may not be sufficient. The question is one of substance and not form. A business may therefore need to change its existing practices and procedures so that the reality conforms to the stated contractual position.